INTERNATIONAL LAW AND CONSTITUTIONAL RIGHT: FREEDOM FROM TORTURE IN VIETNAM AND CHINA La Khanh Tung, PhD Law School, Vietnam National University, Hanoi (VNU) Email: [email protected] There have been many scholarly debates on the impact of international norms and domestic implementations of human rights. They share the different attitudes, ranging from rather pessimism to extreme optimism, about the possible affect of international treaties on human rights and freedom. Though a majority of authors appear to be skeptical about the possibility of improving civil and political rights in less-open regimes such as Vietnam and China, the reality of each is very various to address. This paper is about to focus on the case of freedom from torture, based on an argument that the main barriers inhibiting the improvements in both countries lie with the weak constitutional guarantee of freedom of association and other freedom as essential tools for sustaining human rights. The first part of this paper provides a brief introduction of theoretical frameworks and views on the relationship between international law and domestic practice of human rights in general. Then, the cases of Vietnam and China concerning international standards against torture, and the progress of implementing practices would be discussed in Part 2. The last one, Part 3 considers the role of non-state actors in advocating against torture, in addition to the need of a better constitutional guarantee for freedom of association. 1. Introduction Freedom from torture has been widely acknowledged as a basic human right; torture and other forms of ill-treatment have been internationally outlawed for decades. However, torture is still growing as a very controversial and complex issue. In all continents, there are states failing to criminalize torture as a specific offence under their national laws, and more severely torturing people. Vietnam and China are two neighbouring countries that share the Communist political ideology and state-party model. They have been the subjects for comparison from many perspectives of relating to legal, economic, social, cultural dimensions.1 But human rights seem to be a less attractive topic for scholars to compare. Both Vietnam and China are members of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). As CAT’s member states, their obligations includes taking effective legislative, administrative, judicial or other measures to prevent the acts of torture and similar violation in any territory under their jurisdiction; ensuring that all acts of torture are classified as offences under their criminal law, submitting to the Committee against Torture periodic reports on the measures to give effect to their undertakings under CAT…. While the international human rights treaty against torture are creating certain 1 Some work on legal comparision are: John Gillespie, Pip Nicholson (eds), Asian Socialism And Legal Change: the Dynamics Of Vietnamese And Chinese Reform (ANU 2005); John Gillespie, Albert H.Y. Chen (eds), Legal Reforms in China and Vietnam: A Comparison of Asian Communist Regimes (Routledge 2010). 1 driving force for change, the delaying of institutional reform seems to be the main reason for the slow improvement of situations. The practice of torture are still believed to be “deeply entrenched in the criminal justice system” in China2, and there are “allegations of the widespread use” in Vietnam3. The impact of international human rights law on the implementation of human rights via countries is a long-lasting debate that has been theorized by many authors, e.g., Harold Hongju Koh4, Thomas Risse and Stephen C. Ropp5, Linda Camp Keith6, Oona A. Hathaway7, and Beth A. Simmons8. Authors are varied in their views, from very optimistic to very pessimistic about the possible affects of human rights treaties in national practice. Oona A. Hathaway, one of the most pessimists, indicates: “not a single treaty for which ratification seems to be reliably associated with better human rights practices and several for which it appears to be associated with worse practices”9. Directly relating to CAT, she concludes that “the Torture and Genocide Conventions appear to have the smallest impact on human rights practices of all the universal treaties.”10 Thomas Risse and Beth A. Simmons seem to be more optimistic sharing the view that non-state actors should have played the important role. Thomas Risse and his colleagues put forward a five-phase “spiral model” shifting the emphasize on domestic groups, e.g., national opposition groups, NGOs and social movements, etc., that “link up with international networks and INGOs which then convince international human rights organizations, donor institutions, and/ or great power to pressure norm-violating states”.11 Beth A. Simmons, while stays somewhere between the two extremes, also claims the important part of activism. In her famous book’s chapter on torture, she concludes that “the CAT had an important impact on a considerable subset of countries in which stakeholders and other activists have the motive and the means to mobilize politically to demand compliance with CAT and to use CAT in domestic legal struggles over the meaning and use of torture.”12 Similarly, Harold Hongju Koh’s Transnational Legal Process mentions the role of actors in interaction, interpretation and internationalization of norms without specifically prioritizing or focusing on non-state actors.13 Alternatively, non-state actors including human rights NGOs and activists, have been viewed as having very crucial role to protect and promote human right, at both international and 2 The United Nations Committee against Torture, Concluding observations on the fifth periodic report of China, CAT/C/CHN/CO/5, 9 December 2015, para. 20. 3 The United Nations Committee against Torture, Concluding observations on the initial report of Viet Nam, CAT/C/VNM/CO/1, 29 November 2018, para. 14. 4 Harold Hongju Koh, ‘Why Do Nations Obey International Law?’ [1997] 106, issue 8 Yale Law Journal 2599. 5 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, The Power of Human Rights: International Law and Domestic Change (Cambridge University Press 1999), at 1 - 38. 6 Linda Camp Keith, ‘The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?’ [1999] 36, issue 1 Journal of Peace Research 95. 7 Oona A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’ [2002] 111, issue 8 Yale Law Journal 1935. 8 Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press 2009). 9 Hathaway (n 7), at 1940. 10 Hathaway (n 7), at 1988. 11 Thomas Risse, Stephen C. Ropp and Kathryn Sikkink, The Power of Human Rights: International Law and Domestic Change (Cambridge University Press 1999), at 17-38. 12 Simmons (n 8), at 284. 13 Koh (n 4), at 2599-2660. 2 national levels.14 The contributions of NGOs have been considered as resting on two premises: their expertise and representative.15 The experiences of East Asian countries witness the active and critical roles of NGOs in enhancing human rights practices, both prior and after their democratic transitions.16 However, the development of domestic civil society in countries should depend on the openness of their civic spaces, including freedom of association, assembly and expression. On the other hand, to skeptical politicians, those freedoms might pose direct or indirect challenges to the regimes. The cases of Vietnam and China have been used to illustrate the pattern of “states can raise and lower restrictions on civil society virtually at their discretion, carefully calibrating the space accorded different types of organization, the work that they do, and the needs of the state or ruling party.”17 Looking at the torture from three dimensions - international law, constitutional rights and separation of power, we accept the important role of national constitution in defending freedom and creating the check and balance among branches of government. Correspondingly, the implementations of CAT may urge governments to make institutional reforms through independent investigation of torture allegation and independent monitoring of detention facilities Moreover, without constitutional guarantee of basic freedoms, civil society cannot make contribution to the fight against torture. Examining Thomas Risse and Beth A. Simmons’ theory on the role of domestic groups, this paper focus on the position of NGOs which treasure freedom of association, assembly and expression the most. Three major interrelated questions should be addressed here: What are the limitations of international standards’ impact on preventing torture in Vietnam and China? What kind of constitutional and institutional reforms are needed to make positive changes in both countries? Should freedom of association, in the context of weak constitutional guarantee, be regarded as an entry point to push forward the fight against torture? 2. International engagement, curent situation and pressures for change 2.1. Engagement with international human rights mechanism Both Vietnam and China have been maintaining their state structures and legal systems based on the Marxist political ideology and Stalinist state - party models. They usually try to incorporate national sovereignty and cultural characteristics into the application of human rights. However, in terms of economics, the compliance of China and Vietnam with bilateral